Professional Documents
Culture Documents
The author is
a lawyer and activist
for the rights of
marginalized communities
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tice in the past decade consistently reaffirms that both sexual orientation
and gender identity are recognized as prohibited grounds of discrimination
within the most significant agreements and conventions on human rights
including the conventions of the United Nations (UN), the European Convention on Human Rights (ECHR) of the Council of Europe and the documents that constitute the legal framework of the European Union. On the
other hand, the efforts made by the Republic of Macedonia in the alignment process of the national legislation to the European Union hasnt yet
resulted with the necessary protection mechanisms for the lesbian, gay,
bisexual and transgender3 people. The national legal framework for protection against discrimination excludes sexual orientation and gender identity as prohibited grounds of discrimination while in practice the number
of verbal and physical assaults on persons, groups and organizations for
LGBT rights promotion and protection is on rise. In the absence of a comprehensive national legal framework for protection against discrimination
based on sexual orientation and gender identity, it is necessary to implement the international standards within the national procedures so as to
provide protection against discrimination based on sexual orientation and
gender identity. The Coalition Sexual and Health Rights of Marginalized
Groups has therefore published The Handbook of international standards
for protection against discrimination based on sexual orientation and gender identity (hereinafter Handbook)4 whose primary objective is to bring
the international standards for protection against discrimination based on
sexual orientation and gender identity closer to judges, representatives of
non-discrimination bodies, lawyers as well as to human rights activists.
The following text examines the most important international standards for
protection against discrimination based on sexual orientation and gender
identity as provided in the Handbook which are legally binding for the
Republic of Macedonia, as well as documents that are not legally binding
but do represent a standard that all countries should strive for in order to
3 Transgender persons are people whose gender identity does not fit the binary standards of
the society or whose gender identity is opposite of their biological sex. Transgender people
can be people with gender non-conforming behavior, transsexuals, cross-dressers, etc.
The term transsexual designates any person that has undergone or is planning to undergo
a series of medical procedures such as hormone therapy, sex reassignment surgeries and
to change ones legal identity documents so as to confirm ones gender identity.
4 Coalition Sexual and Health Rights of Marginalized Groups, Handbook of international
standards for protection against discrimination based on sexual orientation and gender
identity, Boshkova Natasha, Skopje, 2014.
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tions of the State Parties involved in the process and found by the Court to
have violated the freedom of assembly.
In one of the cases, an organization didnt obtain permission to organize a march for raising awareness of sexual minority rights which should
have been issued by the Mayors Office whereas meanwhile the Mayor
himself condemned the organization of an event envisioned as a public
propaganda of homosexuality. The Court has taken into consideration
all circumstances including the publicly expressed views of the Mayor whose Office is in charge to provide an area for public assembly - which,
according to the Courts statement, have influenced the final decision to
refuse permission.23 Politicians statements given publicly and expressing
their personal views on homosexuality should not be dismissed nor analyzed as isolated cases. On the contrary, the Court is of the view that it
may be reasonably surmised that the Mayors opinions could have affected
the decisionmaking process in the present case and, as a result, impinged
on the applicants right to freedom of assembly in a discriminatory manner.24 Furthermore, the Court has also found in other circumstances that the
State cannot justify the ban on public gatherings for LGBT rights promotion under the pretext of protecting the majority who has negative attitudes
towards homosexuality. Namely, the Courts explanations indicate that if
every probability of tension and heated exchange between opposing groups
during a demonstration were to warrant its prohibition, society would be
faced with being deprived of the opportunity of hearing differing views on
any question which offends the sensitivity of the majority opinion.25
Thus, the State cannot refer to the majority opinion so as to exclude
from or to limit the enjoyment of the rights by minorities. Any measures
interfering with the freedom of assembly and expression other than in cases of incitement to violence or rejection of democratic principles however shocking and unacceptable certain views or words used may appear
to the authorities do a disservice to democracy and often even endanger
it.26 In the process of argument analysis, the Court defines the criteria to be
applied when the State restricts certain right of any group, in this case those
of the people with different sexual orientation and gender identity, so as to
23 European Court of Human Rights, Baczkowski and others v. Poland, Application No.
1543/06, Judgment of 3 May 2007.
24 Idem, paragraph 100.
25 European Court of Human Rights, Stankov and the United Macedonian Organization
Ilinden v. Bulgaria, Application No. 29221/95 and 29225/95, judgment of 2 January 2002.
26 European Court of Human Rights, Sergey Kuznetsov v. Russia, Application No. 10877/04,
judgment of 23 October 2008, paragraph 45.
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protect another group. According to the Court, the State cannot substitute
one legitimate objective guaranteed under the Convention for another one
that has never been considered as relevant in the process of striking balance on national level. In that context, the Court underlines that the guaranties of freedom of assembly and association as defined under the Convention apply to all assemblies except to those where the organizers and
participants have violent intentions or otherwise deny the foundations of a
democratic society.27 In respect of striking the balance among competing
Convention rights, the Court allows the national authorities a wide margin
of appreciation. For instance, the Court found that there was no breach of
the right to manifest religion or belief in the case where the employee was
dismissed because she refused to register same-sex partnership due to her
Christian religion which disapproves same-sex relationships.28
Margin of appreciation of the States in cases of discrimination
based on sexual orientation
In several cases the Court has underlined the fact that the difference
in treatment on the basis of sexual orientation requires particularly serious
reasons by way of justification.29 Hence, the States have a very narrow
margin of appreciation in cases dealing with LGBT rights. Although afforded to the States, the margin of appreciation is seemingly defined as
the result of method usage but, in fact, reflects the moral reasoning of the
Court. Consequently, apropos homosexuality-related issues, differences
can be found in the way the margin of appreciation is being used and determined.30
The recent case-law of the Court provides two examples of the Courts
unpredictability in cases with similar fact evidence. In the first case, the
Court was to determine whether discrimination based on sexual orientation may have occurred in relation to the right to adoption. According to
the plaintiffs allegations, the legal system in France allows for a single
27 G. v. Germany no.13079/87, Commission decision of 6 March 1989, Decisions and Reports (DR) 60, p. 256, and Christians against Racism and Fascism v. the United Kingdom,
Commission decision of July 1980, DR 21, p.138.
28 European Court of Human Rights, Eweida and others v. the United Kingdom, Application
No. 48420/10; 59842/10; 51671/10 I 36516/10, judgment of 15 January 2013.
29 European Court of Human Rights, Karner v. Austria, Application No. 40016/98, judgment
of 24 October 2003, paragraph 98.
30 Paul Johnson, Homosexuality and the European Court of Human Rights, Routledge 2013.
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non-married adoptive parent to adopt a child but does not allow it to homosexuals or bisexuals without taking into consideration their personal
qualities and capacities for child upbringing. However, relying on the wide
margin of appreciation, the Court has ruled that the refusal to authorize
adoption did not infringe the principle of proportionality and that the justification given by the Government appears objective and reasonable and the
difference in treatment complained of is not discriminatory.31 In another
case versus France32, the applicant was in a stable lesbian relationship and
wanted to adopt a child. She alleged that at every stage of her application
for authorization to adopt she had suffered discriminatory treatment that
had been based on her sexual orientation and had interfered with her right
to respect for her private life. The Court made a difference compared to
the previous case because of the fact that the applicant was in a stable relationship and therefore did not consider that there would be difficulties
in envisaging the practical consequences of the upheaval occasioned by
the arrival of a child. These two judgments are significant because they
demonstrate a change in trend in the Courts decision-making in relation
to certain issue. The Court has once again demonstrated that the ECHR is
a live instrument and thus, adaptable to the moral and social developments
of the present-day society.
Similar insecurity in the application of the margin of appreciation is
demonstrated in cases related to violation of the rights of same-sex partners
to legal recognition. Two applicants have commenced a civil proceeding
before the Court after the State of Austria did not allow them to conclude a
marriage. They argued that the legal obstacle preventing them from getting
married constitutes a violation of their right to respect for private and family life as well as of the principle of non-discrimination. In its findings, the
Court accentuates that [the Court] still is not ready to provide interpretation of Article 12 (the right to marriage) as a right guaranteed to same-sex
couples under ECHR. However, the Court does not eliminate the possibility of change of this conclusion once the majority of European countries33
include same-sex couples in the national marriage laws. The Court alludes
to its previous legal practice relevant to the interpretation of Article 12
31 European Court of Human Rights, Frett v. France, Application No. 36515/97, judgment
of 26 May 2002.
32 European Court of Human Rights, E.B. v. France, Application No. 43546/02, judgment
of 28 January 2008.
33 At the time when this decision was made, the same-sex marriage in Europe was legal
in the following states: Belgium, Iceland, the Netherlands, Norway, Portugal, Spain and
Sweden.
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This Courts statement points out to the State Parties that their margin of appreciation concerning the difference in treatment based on sexual
orientation is so narrow that it does not even exist. However, subsequent
judgments regarding the margin of appreciation in cases of discrimination
based on sexual orientation indicate that States do enjoy certain margin
of appreciation. The case of Schalk & Kopf v. Austria is a clear example
where the Court relies on its concept of margin determination in order to
disguise the moral reasoning (in this case, of same-sex marriages) by shifting the margin of appreciation to the State.37 Although this case has been
reviewed several months after the case of Kozak v. Poland, in the analysis
of the arguments regarding the difference in treatment of marital and registered partnerships, the Court once again extends the margin of appreciation
afforded to the States. Irrespectively of the fluctuating nature of the margin
of appreciation given to them by the Court, the States must not limit the
rights of individuals purely on the basis of their sexual orientation and if
there is such limitation, the State is obligated to justify its necessity under
the circumstances.
Development of the legal framework for transgender rights
protection
Over the past several years a legal framework has been developed on
international level ensuring the enjoyment of the human rights without any
discrimination or social exclusion of transgender people.38
The principle of equality has been articulated through several provisions in the international agreements adopted by the General Assembly of
the United Nations. The International Covenant on Economic, Social and
Cultural Rights39 was the first document to have recognized the gender
identity as prohibited ground of discrimination. The Committee on Economic, Social and Cultural Rights provides interpretation of the meaning
of discrimination, stressing the equal and inalienable rights of all and
37 Paul Johnson, Homosexuality and the European Court of Human Rights, Routledge 2013.
38 Transgender persons are people whose gender identity does not fit the binary standards of
the society or whose gender identity is opposite of their biological sex. Transgender people
can be people with gender non-conforming behavior, transsexuals, cross-dressers, etc.
The term transsexual designates any person that has undergone or is planning to undergo
a series of medical procedures such as hormone therapy, sex reassignment surgeries and
to change ones legal identity documents so as to confirm ones gender identity.
39 General Assembly of UN, International Covenant on Economic, Social and Cultural
Rights of 16 December 1966, entry into force 3 January 1976.
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considers that the refusal to allow the applicant the change of forename
requested by her is also a relevant factor from the point of view of Article
848 as she finds herself daily in a situation which, taken as a whole, is not
compatible with the respect due to her private life. Consequently, even
having regard to the States margin of appreciation, the fair balance which
has to be struck between the general interest and the interests of the individual has not been attained, and there has thus been a violation of Article
8. [].49 It was for the first time that the Court found that the State had
the obligation to provide legal recognition of the changed sex indication
in the identity documents so as to ensure uninterrupted enjoyment of the
right to respect for the private life by the person with new identity. Another
judgment confirmed the positive obligation of the State Parties to legally
recognize the gender identity of a post-operative transsexual person.50 This
decision has been made almost ten years ago and represents a precedent in
the Courts case-law as it goes one step further than the previous judgment
by imposing obligation on the States to not only give full legal recognition
to gender identity but to also provide the possibility of marriage with reassigned sex. By this decision, the Court has established that sex is not an
unchangeable category and that State Parties have the obligation to provide
sex reassignment surgery according to a procedure regulated by law.
There is a judicial vacuum in Macedonia when it comes to the rights
of transgender persons. There is no law, bylaw, strategy or any other document that addresses the transgender issues in terms of legal recognition
of gender identity or provision of sex reassignment services. In one of its
judgments, the Court has found that the States failure to adopt the necessary legislation on gender reassignment surgery, which would allow any
person to complete ones treatment and have ones new gender legally recognized, constitutes violation of the right to respect for private and family
life as guaranteed under ECHR.51
In two cases,52 the Court has considered complaints about unfairness in
the reimbursement process of the cost of gender reassignment surgery on
48 Idem, 58.
49 Idem, 63.
50 European Court of Human Rights, Christine Goodwin v United Kingdom, Application
No. 28957/95, judgment of 11 July 2002.
51 European Court of Human Rights, L. v. Lithuania, Application No. 27527/03, judgment
of 11 September 2007.
52 European Court of Human Rights, Van Kck v. Germany, Application No. 35968/97, judgment of 12 June 2003 and European Court of Human Rights, Schlumpf v. Switzerland,
Application No. 29002/06, judgment of 9 January 2009.
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than the denial of the right itself. Namely, the exclusion of sexual orientation from the legal framework for protection means non-recognition of
the sexuality as an intimate part of every individuals life which further
on leads to non-recognition of the remaining rights of the individuals with
non-heterosexual orientation and of the possibility of their effective protection.
Natasha BOSHKOVA
INTERNATIONAL LEGAL
FRAMEWORK FOR
PROTECTION AGAINST
DISCRIMINATION BASED ON
SEXUAL ORIENTATION AND
GENDER IDENTITY
Abstract
The protection against discrimination represents a significant point
in the development of both international and national human rights
agenda. The Republic of Macedonia
has not yet adopted a comprehensive
antidiscrimination legislation that
guarantees explicitly the protection
against discrimination based on sexual orientation and gender identity.
This text is a result of the analysis
of the international legal framework
for protection against discrimination based on sexual orientation and
gender identity, carried out during
the preparation of The Handbook of
international standards for protection against discrimination based on
sexual orientation and gender identity. The Handbook is envisioned
as a tool that should incite judges,
competent institutions, lawyers and
activists to apply the international
standards to their work, given that
the challenge to protect the rights
of all citizens implies consistent
implementation of the standards for
human rights protection of all groups
without exception.
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Bibliography
Committee on Economic, Social and Cultural Rights, General Comment
No.20: Non-discrimination in Economic, Social and Cultural Rights Article
2 paragraph 2, E/C.12/GC/20, 2009.
Committee on Elimination of all forms of Discrimination Against Women, General Comment no.27 on older women and protection of their rights.
Committee on the Elimination of all forms of Discrimination Against
Women, General Comment no.28 on the core obligations of State parties
under article 2 of the Convention on the Elimination of all forms of Discrimination Against Women.
Committee on the rights of the child. General Comment no. 13 (2011)
on the right of the child to freedom of all forms of violence.
Committee on the rights of the child. General Comment no. 15 (2013) on
the right of the child to enjoyment of the highest attainable standard of heath.
Council of Europe, Discrimination on grounds of sexual orientation and
gender identity in Europe, Thomas Hammarberg, 2011
Council of Europe, Discrimination on grounds of sexual orientation and
gender identity in Europe, Thomas Hammarberg, 2011.
European Court of Human Rights, B. v. France, Application No.
13343/87, judgment of 25 March 1992.
European Court of Human Rights, Baczkowski and others v. Poland,
Application No.1543/06, judgment of 3 May 2007.
European Court of Human Rights, Christine Goodwin v United Kingdom, Application No. 28957/95, judgment of 11 July 2002.
European Court of Human Rights, Dudgeon v.he United Kingdom,
Application No. 7525 /76,judgment of 22 October 1981.
European Court of Human Rights, E.B. v. France, Application
No.43546/02, judgment of 28 January 2008.
European Court of Human Rights, Eweida and others v. the United
Kingdom, Application No.48420/10; 59842/10; 51671/10 I 36516/10,judgment of 15 January 2013.
European Court of Human Rights, Feret v. Belgium,Application No.
15615/07, judgment of 16July 2009.
European Court of Human Rights, Frett v. France, Application
No.36515/97, judgment of 26 May 2002.
European Court of Human Rights, Karner v. Austria, Application
No.40016/98, judgment of 24 October 2003.
European Court of Human Rights, Kozak v. Poland, Application No.
13102/02, judgment of2 March 2010.
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Routledge 2013.
,
, 2008.
,
2013 , 2014.
,
2012 , 2013.
,
, , , 2014.
. 50/2010, 44/14,
.
. 6/2012.
.
.52/92, 1/92, 31/98,
91/01, 84/03, 107/05 3/09. .